The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact Based upon my observation of the witness and her demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Petitioner, Sheah Rarback is the daughter, and Petitioner Mae Rarback is the wife of Paul Rarback, deceased. Paul Rarback and Mae Rarback were married for over forty (40) years. Paul Rarback commenced employment in a permanent position with the Human Resources Department, Metropolitan Dade County, in December of 1973. Mr. Rarback was employed as a food services manager. On December 23, 1973, Paul Rarback enrolled with the Florida Retirement System and submitted a Personnel History Record Form FRS-MIO to the Division of Retirement. On the form, Paul Rarback listed his two grandsons, Hod and Caynon Rabino, as beneficiaries and Sheah Rarback as contingent beneficiary for the purpose of receiving benefits in the event of his death. On February 1, 1985, Paul Rarback requested an Application for Disability Retirement from his employer because of polymyositis (muscle atrophy). On February 23, 1985, Paul Rarback's employment with Metropolitan Dade County officially ended. Rarback's personnel file indicated that his employment was terminated with a code E/G, which is a retirement code. On March 18, 1985, Paul Rarback completed his "Application for Disability Retirement," Division of Retirement Form FR-13. Rarback listed his daughter Sheah Rarback as the beneficiary and chose "Option 1: Maximum Benefit." The FR-13 form listed four different options as follows: Option 1: Maximum Benefit Full benefit payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. Option 2: Ten Years Certain Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime and, in the event of his death within a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(8), Florida Statutes, as though no beneficiary has been named. Option 3: A reduced monthly benefit payable to the retired member for his lifetime and upon his death a monthly benefit in the same amount is payable to his joint annuitant (spouse or other dependent designated at retirement), if living, for the lifetime of that person. Option 4: A reduced monthly benefit payable to the retired member while he and his joint annuitant are both living. Upon the death of either the retired member or his joint annuitant, the monthly benefit payable to the survivor for the lifetime of that person is reduced to two-thirds of the original benefit even if it is the retired member who is the survivor. During the previous ten years, Mae Rarback had become increasingly senile, was unable to care for herself and had been placed in various nursing homes. Mae Rarback is presently in Douglas Gardens Nursing Home, Miami, Florida, where she has been for the past four years. By letter dated June 27, 1985, the Division of Retirement advised Paul Rarback that it intended to deny his request for disability retirement benefits because the medical documentation submitted did not support his claim of permanent and total disability. In addition, Rarback was advised that he could apply for early service retirement, with a reduction in benefits of 5 percent for each year under age 62 or in the alternative, he could request a refund of his retirement contributions and cancel his membership with the system. The last paragraph of the letter stated in part as follows: . . . before a final decision is made, the Director wants you to have the opportunity to submit additional medical evidence or a written statement, if you wish to challenge the grounds on which he intends to act. If you chose to submit additional evidence or written statement, it will be considered in making the final decision. On June 29, 1985, Paul Rarback died in Miami, Florida. By letter dated February 26, 1986, the Respondent advised Sheah Rarback, through her attorney, that according to their files, the primary beneficiary of Paul Rarback's account was Sheah Rarback, designated on March 28, 1985. On or about July 23, 1986, Petitioner Sheah Rarback received notification from the Division of Retirement that she would receive only the accumulated contribution of Paul Rarback to the retirement account in the amount of $887.67.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioners' request that the designation of beneficiary be reformed to allow Mae Rarback to receive the benefits from her deceased husband's retirement account as though she had originally been designated the beneficiary and joint annuitant be DENIED and the petition DISMISSED. DONE AND ORDERED this 5th day of June 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1987. COPIES FURNISHED: Stewart Marcus, Esquire 2251 S.W. 22nd Street Miami, Florida 33145 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement 2639 North Monroe Street Building C - Suite 207 Tallahassee, Florida 32303 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Petitioner is entitled to additional retirement benefits for her years of service between September 1966 and December 1974.
Findings Of Fact Petitioner is a retired member of the FRS. She began working for the Duval County Juvenile Detention Center (DCJDC) in August 1966. However, Petitioner's name was not placed on the payroll until September 1966 because of the time she was absent. As an employee of the DCJDC, Petitioner was a county employee but also a participant in the FRS. She made contributions in the amount of $1,850.78 to the FRS from September 1966 through December 1974. The FRS became non- contributory for all state and county employees in January 1975. Petitioner terminated her employment with Duval County on June 20, 1977. At that time, Petitioner requested a refund of her accumulated contributions to the FRS. Petitioner acknowledged in her request for refund that she waived her interest in FRS for the refunded service. On or about February 22, 1978, Respondent issued Voucher #273254 and Warrant #0364356 made payable to Petitioner in the amount of $1,850.78. Petitioner's testimony that she never received the refund is not credible. On or about October 16, 1981, Petitioner returned to work at DCJDC. After receiving several promotions, Petitioner transferred to a position at the Department of Health. Petitioner terminated her employment at the Department of Health on November 13, 1998. In August 2000, Petitioner filed an Application for Service Retirement. The application includes the following sworn statement: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. Respondent sent Petitioner an Acknowledgment of Service Retirement Application dated August 10, 2000. The acknowledgment indicated that Petitioner's retirement date was June 2000 and that she could purchase credit for refunded service from September 1966 through December 1974 by paying Respondent $7,918.46. The acknowledgment made it clear that Respondent required written notification if Petitioner did not intend to purchase this service. In March 2001, Petitioner executed an Option Selection for FRS Members. She selected Option 1, which provides her a monthly benefit for her lifetime. In a letter dated March 27, 2001, Petitioner advised Respondent that she did not intend to buy back any time. Additionally, she stated as follows: I would like for my retirement application to be accepted/processed as is. The rate quoted was at $517.00. However, if this amount is incorrect, I would like to know as soon as possible. Based upon Petitioner's statement in the letter, Respondent began paying and Petitioner began receiving her retirement benefits effective June 1, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to any additional retirement benefits. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2004. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Veronica P. Holt 230 East First Street, Apartment 1313 Jacksonville, Florida 32206 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue is whether Petitioner is entitled to receive survivor benefits from a joint and survivor annuity, under Option 3 of the Florida Retirement System (FRS) defined benefit plan, following the death of her spouse, Anne M. Birch, who, as an FRS member, elected Option 1 in 2012 when Florida law would not allow Ms. Birch to elect Option 3 or 4 and designate the joint annuitant as Petitioner, whom she lawfully married after electing Option 1.
Findings Of Fact Ms. Birch, who was born on September 12, 1950, and Petitioner, who was born on August 26, 1956, fell in love and began to live together in 1992. They jointly owned all significant property, including their primary residence, with a right of survivorship and were jointly liable for household expenses and debt, including the mortgage note on their primary residence. On January 31, 2001, Ms. Birch executed a will that left any remaining property to Petitioner and named her as the personal representative of the estate.1/ Ms. Birch designated Petitioner as her primary beneficiary for employee benefits that authorized such designations. On October 11, 2002, Ms. Birch and Petitioner signed an Amended Declaration of Domestic Partnership, pursuant to the Broward County Domestic Partnership Act of 1999, to register themselves as domestic partners under Broward County Ordinance 1999-18. Fully vested and having accrued substantial benefits from having worked for Broward County in an FRS-covered position for nearly 30 years, on October 23, 2012, Ms. Birch entered DROP, effective October 1, 2012. At that time, Ms. Birch elected Option 1 for the payment of her benefits, checking the "no" box in response to the question of whether she was married. As described in the Conclusions of Law, Option 1 is the maximum benefit and is payable for the life of the retiree. Ms. Birch's monthly Option 1 benefit was $3039.25. The monthly Option 3 benefit, which, as described below, is payable until the latter death of the FRS member or her surviving spouse,2/ would have been nearly $1000 less than the monthly Option 1 benefit.3/ Respondent implemented Ms. Birch's election by paying Ms. Birch's Option 1 benefits into her DROP account. In August 2013, Ms. Birch became ill with cancer. She eventually had to quit working and terminated DROP, at which point Respondent paid Ms. Birch her Option 1 benefits directly. On June 16, 2014, Ms. Birch and Petitioner were lawfully married in Massachusetts. Almost two years later, on May 24, 2016, Ms. Birch died, at which time all payments under Option 1 ended. When Ms. Birch and Petitioner registered as domestic partners in Broward County, no state allowed or recognized same- sex marriage, often pursuant to a "Defense of Marriage Act" (DOMA). Continuously since 1997, Florida law banned the allowance and recognition of same-sex marriage, even if performed in a jurisdiction where such a marriage were legal, and restricted "marriage" to a legal union between a man and a woman and "spouse" to a member of such a union. § 741.212(1) and (3); Ch. 97-268, § 1, at 4957, Laws of Fla. (Florida DOMA).4/ Massachusetts was the first state to allow and recognize same-sex marriage, effective in 2004. Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941 (Mass. 2003) (decision stayed 180 days to allow legislature to enact law consistent with the court's ruling). Three or four years after Goodridge, Ms. Birch and Petitioner visited Massachusetts, but did not exercise their right to enter into a lawful marriage at that time. A series of court decisions invalidated the federal and state DOMAs, including the Florida DOMA. On June 26, 2013, the U.S. Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), held that the federal DOMA, as applied to federal tax law, was unconstitutional. By order entered August 21, 2014, in Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014) (Brenner I), Respondent was enjoined from enforcing or applying the Florida DOMA, although the court stayed its injunction. The U.S. Supreme Court lifted the stay,5/ as reported by the district court in Brenner v. Scott¸ 2016 U.S. Dist. LEXIS 91969 (N.D. Fla. 2016) (Brenner II), in which, on March 30, 2016, the court issued a summary judgment on its injunction in Brenner I. Between Brenner I and Brenner II, on June 26, 2015, the U.S. Supreme Court held that state DOMAs were unconstitutional in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Petitioner testified that she and Ms. Birch would have been lawfully married by October 2012, when Ms. Birch retired, but for the Florida DOMA. This testimony is credited. Long prior to 2012, Ms. Birch and Petitioner organized their financial affairs as though they were lawfully married, sharing assets and liabilities equally. Petitioner testified credibly that she and Ms. Birch always "played by the rules": thus, Ms. Birch and Petitioner would have been deterred from getting married prior to Ms. Birch's retirement, such as when they were visiting Massachusetts in 2007, due to the legal futility of attempting to obtain recognition in Florida of a marriage lawfully performed elsewhere. Less persuasive is Petitioner's testimony that, in October 2012, Ms. Birch would have elected Option 3, if this option had been available to her, and it is impossible to find on this record that she would have done so. There is no evidence that Ms. Birch and Petitioner rearranged their financial affairs to achieve, to the extent possible, an Option 3 election. Household income was $1000 per month greater under Option 1 than Option 3, so life insurance on Ms. Birch or an annuity for Petitioner could have mitigated Ms. Birch's inability to choose Option 3 when she retired. Prior to retiring, Ms. Birch did not attempt to elect Option 3 in writing or orally. Even after retiring, as noted below, Ms. Birch displayed ambivalence about whether she wanted to change her election. As a named defendant in Brenner I, on April 14, 2015, Respondent responded to the injunction against its enforcement or application of the Florida DOMA by issuing Information Release #2015-184 (Release). Sent to FRS members who retired prior to January 2, 2015, and elected Option 1 or 2, the Release states: . . . FRS retirees and . . . DROP participants who were in legally-recognized same-sex marriages at the time they retired or began DROP participation and chose Option 1 or Option 2 will have an opportunity to change benefit payment options in light of . . . Brennan. These retirees will be able to change their retirement payment option from their current selection to Option 3 or Option 4 to provide a continuing monthly benefit to their spouse. The retirees impacted by this change have an effective retirement date or DROP begin date on or before January 1, 2015. The Release provides that an eligible retiree interested in a second election must contact Respondent in writing, identify the retiree's spouse, and certify that the retiree and spouse were married in a state or country that allowed same-sex marriage when the FRS member retired. The Release states that Respondent will respond with an estimate of the new benefit payment under the option that the retiree intends to select and provide the retiree with the paperwork necessary to make the second election. Available on Respondent's website,6/ the Release provides the opportunity of a second election of Option 3 or 4 to any FRS member7/ who retired prior to January 2, 2015; chose Option 1 or 2 when she retired; and was in a same-sex marriage when she retired. The Release places no limit on how far in the past the retirement took place.8/ The thrust of Petitioner's case is directed toward backdating her lawful marriage to Ms. Birch to a point prior to Ms. Birch's retirement. As noted above, the timing of the lawful marriage is a problem under the Release, which requires a lawful marriage at the time of retirement, but another problem under the Release is the fact that the Release provides to the FRS retiree, not her surviving spouse, the opportunity for a second election, nor, as discussed immediately below, is this a technical requirement that can be overcome by Petitioner's serving as a representative of Ms. Birch--the second election is extended only to living FRS retirees. The virtue of the Release for Petitioner is that it confers the opportunity of a second election without any proof that, at the time of the first election, the FRS member would have elected Option 3 or 4. If Petitioner does not rely on the Release, she must also prove that Ms. Birch would have elected Option 3 or 4, which, as noted above, she has failed to prove. By limiting the second election to the FRS retiree, the Release limits the potential of adverse selection in allowing a second election, possibly years after the first election.9/ There are three possibilities at the time of the second election: both spouses are alive, only the FRS retiree is alive, and only the surviving spouse is alive. The Release's restriction of the right to make the second election to the FRS retiree means that the second and third possibilities do not result in second elections: respectively the FRS retiree would not reduce her payment to provide an annuity to a spouse who is already deceased10/ and a surviving spouse has no right to make an election under the Release. The couple may gain a minor financial advantage by the opportunity to revisit the payment option several years after the retirement of the FRS member, so that they may be better informed of the health of each of them. But the surviving spouse would gain a significant financial advantage by the opportunity to revisit the payment option after the death of the FRS member. Shortly after Respondent issued the Release, Ms. Birch filed with Respondent a Spousal Acknowledgement Form that she had signed on May 8, 2015. This form indicates that Ms. Birch is married, but nothing else. At about the same time, though, Ms. Birch contacted Respondent by telephone to discuss the Release and any choices that she may now have under the Release. By letter dated May 26, 2015, Respondent calculated monthly benefit amounts under Options 1 through 4, but the letter warns: "Your benefit option will not be changed unless you complete and return the required forms noted in this letter" and indicate a choice of repaying in a single payment or installments the excess benefits of Option 1 over the smaller benefits paid under Option 3 or 4. The May 26 letter requires further action on Ms. Birch's part and predicates any right to a second election upon a lawful marriage at the time of retirement. The record provides no basis for finding that any of Respondent's representatives misstated the lawful-marriage condition. To the contrary, in at least one conversation with Ms. Birch, Respondent's representative insisted on verification of a lawful marriage as of October 2012. Additionally, Ms. Birch was not requesting a right to make a second election; at most, she was gathering information to prepare to decide whether to ask to change her election. By June 26, 2015, pursuant to a note documenting a telephone conversation between Ms. Birch and a representative of Respondent, Ms. Birch decided to keep Option 1 rather than make a second election of Option 3.11/ In May 2016, Ms. Birch finally made a clear attempt to change her election to Option 3. By letter dated May 12, 2016, Ms. Birch stated that she was lawfully married to Petitioner on June 12, 2012, and asked for "the change in beneficiary for my pension, due to the one time option given" in the Release. Even at this late date, Ms. Birch was not yet ready to elect Option 3 because the letter concludes: "I would like to see the breakdown of monetary options to make an informed decision." However, on May 20, 2016, during a telephone call with a representative of Respondent, Ms. Birch provided the date of birth of Petitioner and asked Respondent to expedite her request because she did not have long to live. On the same date, Ms. Birch signed an Option Selection form electing Option 3. By letter dated July 18, 2016, Respondent acknowledged the death of Ms. Birch and informed Petitioner that all pension benefits ended at that time. By letter dated September 22, 2016, Petitioner asked for reconsideration and supplied copies of various documents, the relevant provisions of which have been referenced above. By letter dated October 20, 2016, Respondent denied the request for reconsideration.
Recommendation It is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under Option 3 from Ms. Birch's FRS account and dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2018.
The Issue Whether the Petitioner may withdraw from participation in the Deferred Retirement Option Plan (DROP)?
Findings Of Fact The Petitioner, Henry Gohlke, is a member of the Florida Retirement System (FRS), which is governed by Chapter 121, Florida Statutes (2003). The Petitioner is employed by the Department of Agriculture and Consumer Services. The Petitioner divorced his former spouse, Joanne Marie Gohlke, on October 29, 1997, and a Qualified Domestic Relations Order (QDRO) was entered which provided that Joanne Marie Gohlke was the alternate payee of the Petitioner's retirement benefits. See Exhibit J-10. Under the terms of the QDRO, when the Petitioner retired, his future retirement benefits would be incorporated into alimony payable to Joanne Marie Gohlke, beginning with the first monthly retirement benefit payment made to the Petitioner. The payment was fixed based upon the value of the Petitioner's pension at the time, and Joanne Marie Gohlke would receive $552.05 per month. DROP is a program which permits an employee, who has qualified for retirement, to retire; draw his retirement benefit based upon the retirement option he selected; and have the money paid into a non-taxed, interest-drawing account for up to five years while the employee continues to work. At the end of the five years or such other shorter time the employee elects, the employee may cease working and receive all or a part of the money in a lump payment paying the income taxes due on the amount, or roll the money over into an Individual Retirement Account (IRA) or similar program without paying income taxes until the money is withdrawn from that account. The Petitioner testified that he queried Eddie Tanner, who at that time was a paralegal working with the Division of Retirement, about the effect of the QDRO on his DROP deposits. There is conflicting testimony about what the Petitioner was told; however, Tanner testified concerning his customary advice to persons subject to QDROs. The Petitioner was advised to seek clarification from the domestic relations court to be certain. The Petitioner elected to participate in the DROP program in March of 2003. He may continue to participate in DROP until March 28, 2008. See Exhibit J-7. When he began to receive retirement benefits, a letter was sent to him on June 25, 1998, advising him that Joanne Marie Gohlke would qualify for a $552.05 per month share of the Petitioner's accrued DROP benefit as provided in the QDRO. The letter also advised that, upon the Petitioner's ceasing to work, the moneys due Joanne Marie Gohlke would be paid to her together with the accrued interest. This letter was sent to the Petitioner's old address, and he did not receive the letter. Eventually, the Petitioner learned that his DROP payments would be subject to the allocation of $552.05 each month to his ex-wife pursuant to the QDRO. This money would be payable to his ex-wife at the same time the Petitioner accessed his DROP money. The Petitioner questioned this payment to his ex-wife. The status of DROP benefits has been litigated, and the courts have determined that DROP benefits are retirement benefits and subject to QDROs. See Ganzel v. Ganzel, 770 So. 2d 304, 306 (Fla 4th DCA 2000). Based upon this precedent, the Respondent denied the Petitioner's request not to pay the proceeds from DROP to Joanne Marie Gohlke. Upon learning that his ex-wife would receive a portion of his DROP account, the Petitioner sought to withdraw from his participation in the DROP. Although an employee may elect to continue to work at the end of five years with the permission and written concurrence of his employer, he or she would automatically lose his or her DROP moneys by continuing to work past the five-year mark.1/ There is no administrative mechanism for withdrawing from DROP which would be analogous to "un-retiring." The Respondent properly denied the Petitioner's request to withdraw from DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition be dismissed. DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2004.
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
The Issue Whether Petitioner was overpaid $961.87 in 1975 when he received a refund of his retirement contributions, and, if so, whether Petitioner is required to refund that amount to the Division of Retirement before receiving any retirement benefits.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a law enforcement officer employed by the Florida Highway Patrol (FHP). Petitioner was first hired by FHP in August 1968. He left FHP on October 15, 1975, to pursue a private venture. Petitioner rejoined FHP in July 1981, and he is currently a member of the troop that patrols the Florida Turnpike. Between September 1968 and December 1974, Petitioner made monthly contributions to the FHP pension fund which, at the time, was administered by FHP. In 1970, when the Florida Retirement System (FRS) was created, Respondent took over the administration of the FHP pension fund, and Petitioner elected to participate in the FRS. The FRS was, and still is, administered by Respondent pursuant to Chapter 121, Florida Statutes. Prior to January 1, 1975, the FHP pension fund and the FRS were "contributory," meaning that the employee was required to contribute a percentage of his or her salary to the fund, and contributions were also made by the employer. Starting on January 1, 1975, the FRS became "non-contributory," meaning that the employer made all of the contributions. Petitioner's contributions to his FHP pension fund account were recorded on a four-column ledger sheet which showed the old balance, date of contribution, amount of the contribution, and the total balance. The ledger sheet was not computerized. The entries were manually typed onto the ledger sheet. Petitioner's account showed a total balance of $4,656.71 on December 31, 1974, and because the FRS was "non- contributory" after that date, the account had the same balance on October 15, 1975, when Petitioner left FHP. The total balance shown for Petitioner's account was incorrect as a result of a calculation error made when Petitioner's December 1968 contribution was entered onto the ledger sheet. Prior to that contribution, the old balance reflected on the ledger sheet was $108.89. Petitioner's December 1968 contribution was $37.45, so the total balance should have been $146.34. However, a calculation error was made and the total balance entered on the ledger sheet was $1,108.21. The effect of this error was that the balance shown in Petitioner's account was $961.87 (i.e., $1,108.21 minus $146.34) more than Petitioner had actually contributed. The error was carried forward to the following month when $1,108.21 was entered as the old balance, and all subsequent entries to Petitioner's account reflected the error. As a result, Petitioner's actual contributions as of December 31, 1974 (and, hence October 15, 1975, when he left FHP) were $3,694.84, not $4,656.71. The error was not discovered in October 1975 when Petitioner left FHP and requested a refund of his contributions. Apparently, the account was not audited prior to payment of the refund to Petitioner. In October 1975, Petitioner signed a card requesting a refund of his contributions. The address listed on the card corresponded to Petitioner's address at that time. The pertinent information from the card (i.e., the payee and the amount) was provided to the Comptroller by Respondent when a warrant was requested. The Comptroller prepared a warrant in the requested amount and returned it to Respondent along with a computer- printed label that contained Petitioner's name and social security number, the refunded amount ($4,656.71), warrant number (173213), and the date of the warrant (November 4, 1975). The label was affixed to the refund request card, and the warrant was mailed to Petitioner. The Comptroller's records show that warrant number 173213 was paid on November 21, 1975. The records do not show the payee of the warrant. Nor do the records show whether the warrant was deposited into a bank account or cashed. The cancelled warrant no longer exists. Petitioner did not recall receiving a warrant in the amount of $4,656.71. Petitioner and his wife both testified that they recalled receiving only $2,500.00. Petitioner produced a deposit slip dated November 15, 1975, showing a $2,500.00 deposit as well as bank records which showed that deposit as the only large deposit into Petitioner's account between November 1975 and February 1976. The source of the $2,500.00 check is not shown on the deposit slip. The Comptroller's records show no FRS warrants in that amount during the period of November 15, 1975, through November 21, 1975, when such a warrant would likely have been paid. Moreover, Petitioner conceded that he may have had another bank account at the time, although he could not locate any records for such an account. Petitioner received a statement of account from Respondent in June 1974 showing the balance of his account to be $4,220.47 at that time. Despite having that information and despite his financial circumstances being "tight" at the time, Petitioner did not make any inquiry to Respondent as to why he received only $2,500.00. This suggests that the $2,500.00 check was not the FRS warrant. The overpayment was first discovered in 2000 when Respondent conducted an audit of Petitioner's FRS account as part of its preparation of the member annual statement required by Section 121.136, Florida Statutes. Petitioner was first informed of the error and the 1975 overpayment in August 2001 when he received an unsolicited telephone call from Brenda Shiver, an employee of the Respondent, regarding his retirement plans and the cost of "buying back" his prior service with the FHP between 1968 and 1975. Petitioner has no current plans to retire. Nor does Petitioner have a current desire to "buy back" his prior service which would cost over $21,000, not including the amount at issue in this proceeding. The cost of the prior service is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement issue a final order that increases the cost for Petitioner to "buy back" his prior service by $961.87 to reflect the 1975 refund overpayment, but eliminates the mandate that Petitioner pay that amount as a condition of receiving retirement benefits related to his current service. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002. COPIES FURNISHED: Richard W. Holland 17964 Lookout Hill Road Winter Garden, Florida 34787 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
Findings Of Fact Petitioner is a resident of Florida and resides at 306 Sweetwater Cove Boulevard, North, Longwood, Florida 32779. Respondent, Department of Administration, Division of Retirement, is an agency of the State of Florida located at Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 32303. Intervenor is a resident of 5448 San Luis Drive, Orlando, Florida 32807. The agency action challenged by the Petition is the determination that the continuing monthly retirement benefit available under Option 4 of the Florida Highway Patrol Pension Plan, which provides for a continuing monthly benefit to the "spouse" of the retiree shall be paid to the person who was the spouse at the time of the retiree's retirement, not the individual who was the spouse of the retiree at the time of the retiree's death. Petitioner was not married to Florida Highway Patrol retiree Jack E. Walden on the date of his retirement, which was November 1, 1972, but was the legal spouse of Jack E. Walden at the time of his death on January 9, 1985. Florida Highway Patrol retiree Jack E. Walden was married to Barbara C. Walden on the date of his retirement; however, subsequently on January 22, 1976, Barbara Walden and Jack Walden were divorced. Thereafter, on February 6, 1976, Jack Walden married Marilyn S. Walden and she remained his spouse during the following nine years until his death. Petitioner has sought to be paid a "surviving spouse" or other benefit available from the Florida Highway Patrol pension plan, however, the Agency has determined that any benefit must be paid to the former spouse of Jack E. Walden, not Petitioner. Intervenor, Barbara C Yeater, was married to Jack E. Walden on January 19, 1949. She was his spouse during the entire time of his service with the Florida Highway Patrol, at the time of his retirement in 1972, and until dissolution of their marriage in 1976. In September, 1972, prior to his retirement, Jack E. Walden designated Barbara Walden as his beneficiary under the Highway Patrol Retirement System. (Exhibit 1)2 On June 27, 1975, Respondent received Exhibit 2,3 but did not respond to it. At the time Exhibit 2 was received by Respondent, it was the Division of Retirement policy that a retiree who had selected Option 4 under Chapter 321, F.S., could not change the previously selected recipient of survivor benefits subsequent to retirement and cashing of the first warrant. A copy of Exhibit 2 was not sent to Barbara Yeater. There was no further communication from Jack E. Walden to Respondent concerning changes in beneficiary or option selection after June 27, 1975. There was an exchange of correspondence between Respondent and Barbara Yeater (Exhibits 3, 4 and 5),4 but copies of that correspondence were not sent to Jack E. Walden. The Petition and final judgment of dissolution between Jack Walden and Barbara Yeater are Exhibits 7 and 8 in evidence. The subject retirement benefits were not disposed of in the final judgment of dissolution. The monthly benefit payable to Jack E. Walden's surviving spouse is $622.00 plus cost-of-living adjustments. Decedent retired with 21.60 years service, which produced an initial benefit of $475.91. Jack E. Walden believed, at the time of his death, that he had accomplished the change in beneficiary which he sought to carry out by filing Exhibit 2 with Respondent. This fact is based on the absence of any reply by Respondent rejecting the proposed change, by Decedent's failure to make other arrangements for Marilyn Walden, by not seeking to modify the alimony payments awarded to Intervenor, and by his statements to Petitioner and to his friend, George Watson, indicating his belief that the change had been effected, and, finally, by the fact that Respondent accepted and thereafter utilized the change of address contained in the change of beneficiary notice. Respondent relied on the Arnow case5 in its decision to award the continuing benefits to Intervenor on the death of Jack E. Walden (discussed below).
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order awarding continuing retirement benefits to Petitioner. DONE and ENTERED this 29th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985.
The Issue Prior to the hearing a short pre-hearing conference was held. It was stipulated to by the parties that Hadden was a member of the Florida Retirement System, had over 17 years of creditable service, and that Hadden could no longer perform the duties of an automotive mechanic because of his physical limitations. Hadden had applied for regular disability retirement benefits. The Division controverted Hadden's eligibility for such benefits on the basis that while Hadden could not perform the duties of an automotive mechanic that his physical condition did not prevent him from rendering useful and efficient service to the State in some other capacity calling for less strenuous activity.
Findings Of Fact Hadden is a white male, 51 years old, who worked as an automotive mechanic for Polk County for over 17 years. Hadden had had no formal schooling and can read and write very little. From Hadden's testimony and observations at the hearing regarding Identification of documents, it was apparent Hadden is functionally illiterate. Evidence was received that the former employer had indicated that there were no positions available for which Hadden was qualified. Hadden testified that he did do yard work at his home, mowing the lawn with a riding mower and weeding flower beds. However, Hadden indicated that if he became hot he would suffer pains in his chest and have to take his medication and lay down and rest for several hours. It appeared that even light physical work was beyond his capacity to perform on a regular continuing basis. Doctors' reports supporting Hadden's retirement application indicate that Hadden's physical condition will not improve and will probably worsen. Doctors restrict his activity to "mild" activity which is not strenuous or continuous. This would be consistent with Hadden's testimony regarding yard work. It should be noted that medical reports indicate that Hadden's heart condition is complicated by a nervous condition which restricts his ability to perform tedious manual work.
